Madras High Court
N.Dhanasekaran vs The Tamil Nadu Government on 1 November, 2018
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana, T.Krishnavalli
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 01.11.2018
CORAM
THE HONOURABLE MRS.JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MRS.JUSTICE T.KRISHNAVALLI
W.A.(MD)Nos.686 to 698 of 2018, 1016, 1030 to 1051, 1068, 1096,
1097, 1112, 1113, 1119 to 1135, 1160, 1164, 1165, 1166 to 1209, 1212
to 1224, 1269, 1307, 1323 to 1341, 1359 to 1363 of 2018, 1369 to
1400, 1404 to 1420, 1421, 1426, 1427 to 1442 of 2018 and 1504 and
1505 of 2018
and connected miscellaneous petitions
W.A.(MD)No.686 of 2018 :
N.Dhanasekaran .. Appellant
Vs.
1. The Tamil Nadu Government
rep. by the Secretary to Government,
Tourism, Culture and Religious Endowment Department,
Fort St. George, Chennai-9.
2. The Commissioner,
Hindu Religious and Charitable Endowments,
Nungambakkam High Road,
Chennai-34.
3. The Joint Commissioner/
Executive Officer,
Arulmighu Dhandayuthapani Swamy Thirukoil,
Palani, Dindigul District. .. Respondents
Prayer: Writ Appeal filed under Clause 15 of Letters Patent against the
order dated 14.03.2018 made in W.P.(MD) Nos.4428 of 2018.
For Appellant : Mr.V.K.Vijayaraghavan
For Respondents : Mr.K.Chellapandian,
http://www.judis.nic.in Additional Advocate General
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COMMON JUDGMENT
[Judgment of the Court was delivered by PUSHPA SATHYANARAYANA, J.] Our State of Tamil Nadu is known for its famous and ancient temples, not only for the religious values, but also for its elaborate architecture and brilliant sculptures. A visit to those temples make even tourists outside India spellbound with their beauty. Most of the temples built in medieval times are known for their brilliant architecture and sculptures. The construction of these temples without any advanced technology in architecture only showcase the splendid and lavish tastes of the Moovendhars Chera, Chola and Pandia adding to its rich heritage and grandeur in the Tamil culture is indisputable. Most of the temples are constructed 5th or 6th century. During the 14th century, the Moghul invaders in India had caused damages to many of the temples. Though the invasion did not cause as much damage as it was in the northern part of India, what is now available even after several centuries stand a proof for the engineering marvel.
2. Srirangam Ranganathaswamy Temple located in the Srirangam island in Trichy is yet another masterpiece. The uniqueness of this temple is that one can find temple and the township co-existing. Only a part of the temple land is dedicated to temple activities, whereas, the remaining http://www.judis.nic.in portion is owned by individuals forming the township. It is not just a 3 temple, but a temple town unique in sapta-prakarams. The Temple Town is unique to this part of the world. The Srirangam Ranganathaswamy Temple is a treasure trove for epigraphists. The Archaeological Survey of India (ASI) has recorded the inscriptions copied from the temple. The inscriptions throw light on the history, culture and economy during the period between Chola and Nayak. The walls of the Temple are painted with exquisite paintings using herbal and vegetable dyes. In fact, the high end technology used in those paintings those days pose a tough challenge to reproduce them even with the advanced technology of the present day.
2.1. The Arlumighu Nellaiappar Arultharum Gandhimathi Ambal Temple complex is said to cover an area of fourteen and half acres. The original complex is believed to have been built by Pandyas, while the present structure was later added by Cholas, Cheras and Pallavas and Madurai Nayaks. The "Main Mandapam" with its famous musical pillars and the "Chain Mandapam" are all the architectural marvels. The famous "Vasantha Mandapam" has 100 pillars and there are many number of stone inscriptions in the temple.
2.2. The Arulmighu Meenakshi Sundareswarar Temple, Madurai is said to be in existence as a nucleus one from the beginning of the 1 st century and later additions dates back to 7th Century and 13th century by Pandya, Nayak and Vijayanagar Kingdoms. It is located in a prodigious 17 acres of land housing many number of mandapams with gigantic http://www.judis.nic.in 4 Gopurams (Towers). The Golden Lotus Tank of the temple is, indeed, a visual treat for the eyes.
2.3. The Rockfort Temple is a 7th Century Temple dedicated to Lord Ganesha. The temple is situated at the top of the rock. The temple has an inspiring rock architecture. From atop the hill, one can have the stunning view of Trichy Srirangam Kaveri and Kollidam rivers. The temple is maintained by the ASI. The temple complex in the Fort is a collection of three temples.
2.4. The Arulmighu Dhandayuthapani Swamy Thirukoil is one of the six abodes of Lord Murugan. The idol of the Deity is made of amalgam of nine poisonous substances. Traditionally, access to it is by the main staircase cut into the hillside or by the elephant path.
2.5. Another abode of Lord Murugan is located atop the Thiruparamkundram hill, where, he married Deivayanai, daughter of the King of Celestial deities-Indiran, and the marriage was attended by all the divine angels and gods. The temple was built rock-cut architecture, which dates back to the Pandya Kingdom of 6th Century.
2.6. The story of Arulmighu Kasi Viswanatha Swamy Temple is interesting to quote here. During 16th Century, Harikesari Parakkirama Pandian, one of the prominent Pandya Kings, wanted to construct a temple for Hindu god Shiva at Tenkasi in Tirunelveli District, and went to Kasi, a well-known pilgrimage temple town in North India, to bring a Lingam, the most common iconic representation of Shiva in South India. http://www.judis.nic.in 5 In his return journey, when he rested under the grove of a Vilva tree, the favourite tree of Shiva, a cow carrying the lingam refused to move from the spot. He realised that it was a divine wish of Shiva, and he placed the lingam in the place where the cow halted and built the temple. The place where the "Shivalingam brought from Kasi" was installed came to be known as Sivakasi.
2.7. The Ramanathaswamy, who is none other than Lord Shiva, is built by Sita, wife of Rama, the seventh avatar of Vishnu, and worshiped by them to absolve the sins created during the War at Sri Lanka. The Pandya Kings expanded the temple during 12th Century, which has the longest corridor in any Hindu temple in the country. The place is a holy pilgrimage for Shaivites as well as Vaishnavites.
2.8. Arulmighu Srivilliputhur Andal Temple is dedicated to the Hindu god Vishnu and it is associated with the life of Andal, who was found under a Tulsi plant in the garden inside the temple by Periazhwar. She is believed to have worn the garland before dedicating it to the presiding deity. Though her step-father stopped the practise, it is believed that Vishnu appeared in his dream and asked him to dedicate the garland worn by Andal to him daily, which is a practise followed even today. It is also believed that Ranganatha of Srirangam Temple married Andal, who later merged with him.
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3. As stated above, Tamil Nadu has large number ancient, historical, artistic temples. The above temples are only illustrative, and not exhaustive, to bring to light the cultural, architectural and heritage value of the temples in the state. Even from every small temple in a corner of the State to every big temple in the heart of the big cities have such kind of architectural heritage and sculptural beauty, besides its own religious values. The ancient Tamil Kings donated vast extent of lands and offered the valuable articles to the temples to serve the devotees without expecting any assistance from anyone and also to maintain, preserve and upkeep those temples.
4.Whether such lands and articles have been properly administered by the temples, as nearly about 36,000 temples are now under the administration of the Hindu Religious and Charitable Endowments Department (in short, “HR & CE Department”), for the purpose for which they were given is the big question which has “no” as an affirmative answer.
5.The cases on hand is the tip of the iceberg to show the sorry state of affairs prevailing in the temples in the State which apparently exhibit a great threat to the very premises of the temples, leave alone its treasure troves.
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6.The first batch of writ appeals, i.e., W.A.(MD)Nos.686 to 698 of 2018, is directed against the common order of dismissal dated 14.03.2018 made in W.P.(MD)Nos.4428 to 4440 of 2018. The remaining writ appeals lay challenge to the common order of dismissal passed by another learned single Judge dated 04.06.2018 in W.P.(MD)Nos.4069 of 2018 etc., batch.
7.The persons running the shops in Arulmighu Dhandayuthapani Swamy Thirukoil, Palani, Dindigul District filed writ petitions in W.P. (MD)Nos.4428 to 4440 of 2018 against the orders dated 21.02.2018 and 22.02.2018 passed by the Joint Commissioner/Executive Officer of the said temple seeking them to vacate the shops and hand over the vacant possession to the temple within 15 days from the date of receipt of the said orders on the premise that this Court directed the authorities to remove the commercial establishments from the temple premises for the benefit of the pilgrims. The learned single Judge dismissed all the writ petitions on 14.03.2018, inter alia directing the respondents therein, namely, the Secretary to Government, HR & CE Department and the Commissioner, HR & CE, to issue consolidated instructions/circular to all the competent authorities to initiate appropriate action with respect to the commercial establishment inside the temples, drawing a procedure for eviction, within a period of eight weeks from the date of receipt of that order. It was made clear that the instructions/circular should specify http://www.judis.nic.in 8 about the disciplinary action which would follow the erring officials. The learned single Judge took note of the unfortunate incident that took place on 02.02.2018 in Arulmighu Meenakshi Sundareswarar Temple at Madurai. The said order is impugned in W.A.(MD)Nos.686 to 698 of 2018.
8.The brief history leading to the filing of the remaining batch of writ petitions would run thus :
(i)Prior to 02.02.2018, like every other petty shop owners, the writ petitioners and other similarly placed persons were selling their products, which include pooja articles, in their shops situate either inside the temple premises or outside the temple premises abutting the compound walls or at a distance from the temple premises.
(ii)On 02.02.2018, an unfortunate fire accident took place in Veera Vasantharayar Mantapam in Arulmighu Meenakshi Amman Temple at Madurai. Hence, the Hon'ble Chief Minister of Tamil Nadu had convened a High Level Meeting on 12.02.2018, in which, inter alia, a policy decision was taken to protect and safeguard the temples, in particular, temples with high historic heritage and to conserve their architectural heritage. It was also decided to remove the shops inside the temples' premises or abutting the compound walls of the temples in accordance with law.
(iii)Pursuant to the said meeting, the Commissioner, Hindu Religious and Charitable Endowments (for the sake of convenience “the Commissioner”), has issued a Circular in Na.Ka.No.6614/2018/Z1, dated http://www.judis.nic.in 9 14.02.2018, detailing various guidelines and directions to all the Officers of the Hindu Religious and Charitable Endowments Department (“HR & CE Department”) for taking precautionary measures and for protecting the temples from any such occurrence in future. One such direction, as per the policy decision, was to get the shops, both inside the temples and abutting the compound walls of the temples, vacated by following due process of law.
(iv)Consequent to the said circular of the Commissioner dated 14.02.2018, the Executive Officers of various temples served notices of eviction on the persons, who were running the shops with a direction to hand over the vacant possession of the same within the time stipulated therein.
(v)In that backdrop, laying challenge to those notices as well as seeking direction not to evict them in the manner known to law, a number of writ petitions filed by the persons running the shops in their individual capacity and also through their associations before this Court.
9.After hearing the learned counsels on either side, the learned single Judge dismissed all those writ petitions vide the impugned order dated 04.06.2018. Hence, the following writ appeals have been filed.
9.1.The persons running the shops in Arulmighu Nellaiappar Arultharum Gandhimathi Ambal Temple, Tirunelveli, are the appellants in W.A.(MD)Nos.1016, 1119 to 1135, 1160, 1164, 1165, 1112, 1113, 1212 http://www.judis.nic.in 10 and 1224 of 2018.
9.2.The persons running the shops in Arulmighu Thayumanava Swamy Temple, Malaikottai, Trichy have filed W.A.(MD)Nos.1030 to 1051 of 2018.
9.3.The appellant in W.A.(MD)No.1068 of 2018 was running one of the shops situate in Arulmighu Viswanatha Swamy Temple, Sivakasi, Virudhunagar District.
9.4.The appellants in W.A.(MD)Nos.1096, 1097 and 1323 to 1341 of 2018 were running shops in Arulmighu Subramaniya Swamy Thirukovil, Thirupparankundram.
9.5.The persons running shops in Arulmighu Nachiyar (Andal) Temple, Srivilliputhur, Virudhunagar District are the appellants in W.A. (MD)Nos.1166 to 1209 of 2018.
9.6.W.A.(MD)No.1307 of 2018 is directed by one of the persons running a shop in Pudhu Mantapam of Arulmughu Meenakshi Sundareswarar Temple, Madurai.
9.7.The appellants in W.A.(MD)Nos.1359 to 1363 of 2018 sought to challenge the action of the Joint Commissioner/Executive Officer of the Arulmighu Ramanathaswamy Thirukovil, Rameshwaram.
9.8.W.A.(MD)Nos.1504 and 1505 of 2018 are directed by the Sri Meenakshi Sundareswarar Koil Kadaikarargal Sangam represented by its President.
http://www.judis.nic.in 11 9.9.W.A(MD)Nos.1427 to 1442 of 2018 are directed by the persons running shops in Arulmighu Sevugaperumal Temple, Madurai.
10.The appellants/writ petitioners claimed that they were lessees of the respective temples and they were running petty shops inside the temples' premises or outside the temples' premises abutting the compound walls or at a distance from the temples' premises selling various products, including pooja articles and they were paying the lease amount to the temples. They have been served with the impugned notices, which direct them to vacate the shops forthwith and hand over the vacant possession. Their claim is that they could not be evicted without terminating the lease and without undertaking the mandatory requirements stipulated under the Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959 (in short, “the Act”). Arulmighu Dhandayuthapani Swamy Thirukoil, Palani, Dindigul District:
11.The appellants/writ petitioners submitted that the shops were constructed and leased out by the temple outside the Mangammal Mantapam for the benefit of flower vendors and pooja articles sellers and it is far away from the temple. The shops would never cause any safety hazard to the temple. It is their grievance that when the fair rent fixation proceedings are pending before the Commissioner, the present drive to evict them has been initiated by the authorities, which has no legs to http://www.judis.nic.in 12 stand. But the learned Single Judge without appreciating all the materials placed on record and without applying the provisions of the Act in its real perspective, erroneously passed the impugned order and hence, the appellants/writ petitioners seek interference in the said order.
11.1.The respondents filed a common counter affidavit narrating the impediments placed by the appellants/writ petitioners in fixing the fair rent. It is also contended that the contention of the appellants/writ petitioners that there is no safety threat to the temple, as the shops were situated just above the base in the pathway of the hill temple has no merit. It is further stated that there were arrears of rent by the appellants/writ petitioners, which would run to lakhs and lakhs. Placing reliance on the relevant provisions to substantiate their action, the respondents sought dismissal of the appeals.
Arulmighu Nellaiappar Arultharum Gandhimathi Ambal Temple, Tirunelveli, Tirunelveli District :
12. The claim of the appellants/writ petitioners is that barring a few, they have been running the shops outside the temple either near Kudavarai Mantapam entrance or at Swamy Anuppu Mantapam/Ambal Anuppu Mantapam and have been paying the rent regularly and their presence would not cause any threat to the temple. In fact, there is a road in between the temple and the Mantapams, where, the shops of appellants are situated, and in the said road, motor vehicles are allowed, http://www.judis.nic.in including public transport and the shops are in existence for more than 60 13 years and the respondents had allowed it to be put to commercial use. It is their further contention that they have been paying rent to the temple as well as the Corporation and the title of the temple over the mantapams is in dispute. Hence, under the guise of policy decision, they cannot be thrown out of the shops, that too, when the statute is governing the field taking care of all those aspects. The learned Single Judge has not considered this aspect of the matter and hence, the order of the learned Judge needs interference from this Court.
12.1. The respondents submitted that except a few, there is no lease deed with the appellants/writ petitioners, and thus, they were not the lessees of the temple at all and hence, the procedure contemplated under the provision of Section 80 of the Act is not attracted. Even assuming that the appellants/writ petitioners are lessees, the lease could be only for one year and there could not be any permanent lease in their favour. It is submitted that the Assistant Commissioner of Police, Tirunelveli Town, during the year 2014 itself addressed a letter to the Assistant Commissioner of the temple, requesting to remove the shops to protect the heritage temple from security threats, as after 9.00 p.m., miscreants using the said premises causing threat to the society. Arulmigu Thayumanava Swamy Temple, Malaikottai, Trichy,Trichy District :
13.Similarly, the appellants/writ petitioners claimed that they were http://www.judis.nic.in inducted in the shops by the temple and running the shops under valid 14 licence on the pathway to the temple and therefore, those shops would not come within the purview of Section 6(20) of the Act. It is submitted that without conducting any enquiry and without even terminating the licence, in the manner known to law, they cannot be evicted from the temple premises by the authorities under the guise of the policy decision of the Government, when the Statute is governing the field. They also contended that they were regular in payment of lease amount, which were duly accepted by the temple authorities, and if they are thrown out of the shops, their entire family would be put to great hardship.
13.1.The respondents claimed that the subject shops are all housed in the mantapam constructed on the two sides of Raja Gopurams, which is called Malaivasal, as well as in the temples at the hill, and the devotees have to enter into the Mantapam to reach the Thayumanaswamy Temple as well as Uchi Pilliyar Kovil and another temple called Nandi Kovil. Besides pooja articles and flowers, the vendors were selling a number of inflammable articles. In view of housing about 24 shops in all in the mantapam and the temple, it is impracticable to face any fire emergency. Arulmighu Viswanatha Swamy Thirukkovil, Sivakasi, Virudhunagar District :
14.The appellant/writ petitioner claimed that the Executive Officer of the Arulmighu Viswanatha Swamy Temple, without even giving sufficient time, served the eviction notice dated 21.02.2018 directing him and other http://www.judis.nic.in persons to vacate the shop on 22.02.2018 at 6.00 p.m., which is not at all 15 warranted and bad in the eye of law. They have also claimed that the Executive Officer has no authority to evict them and it is only the Joint Commissioner or the Deputy Commissioner, who is empowered to evict the lessees or licensees.
14.1.The respondents contended that the appellant/writ petitioner was running a bakery in the shop, which is abutting the compound wall, and he is using electric operated kitchen in the shop, which would be hazardous to the temple. After the unfortunate incident on 02.02.2018 at Madurai Meenakshi Sundareswarar Temple, following the directions of the authorities, which were issued based on the policy decision of the Government, the third respondent issued the notice. It is submitted that all the shop holders vacated the shops and handed over the keys and thereafter under the guise of shifting the left out articles, the appellant/writ petitioner received the keys, but this time failed to hand over the same. Suppressing these facts, he had filed the writ petition. Arulmighu Subramaniya Swamy Thirukovil, Thirupparankundram, Madurai District :
15. The appellants/writ petitioners are the lawful tenants paying the rent fixed by the temple authorities and they were selling only pooja articles, flowers and religious books in their shops, which is permissible under Section 77 of the Act. But without following the procedure contemplated under Section 78 or 80 of the Act, the respondent http://www.judis.nic.in attempted to throw them out, which is illegal.
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15.1. The respondents claimed that the shops run by the appellants/writ petitioners have marred the artistic appearance of the temple. It is stated that earlier there were huge arrears of rent, which they cleared only after filing of the writ petitions. Arulmigu Nachiyar (Andal) Temple, Srivilliputhur, Virudhunagar District :
16.The appellants/writ petitioners claimed that there were 65 shopkeepers selling only pooja articles, Palkova, toys, etc. and the shops are situated only in the mantapams and not within the temple and there is no harm to the temple out of their products. It is also claimed that their shops have not marred the artistic appearance of the temple necessitating the authorities to resort to eviction, due to which, they cannot eke out their livelihood. Hence, the action of the Executive Officer of the temple that too in violation of principles of natural justice and also in contravention of the procedure contemplated in the statute is not at all warranted.
16.1.The Executive Officer of the temple submitted that barring a few, all the appellants/writ petitioners are not tenants under the temple and they have no right to seek any relief from this Court. Assuming that they have to be evicted in accordance with law, when the Government has taken policy decision to evict all the shopkeepers, they have no right to take umbrage under the Statute.
http://www.judis.nic.in 17 Arulmigu Meenakshi Sundareshwarar Temple, Madurai, Madurai District :
17.The appellant/writ petitioner stated that he was running the shop neither in the temple premises nor in the Pudhumantapam, but only near the mantapam, which will not come within the definition under Section 6(20) of the Act. But the authorities without following any procedure mandated under the statute, locked his shop also. If the mandate contemplated under the statute is followed, he is very much entitled to run the shop.
(a)The authorities of the temple claimed that 115 shops were housed inside the temple premises, of which, 42 shops alone were situated in Veera Vasantharayar Mantapam. Out of those 42 shops, 19 shops were affected in flame on the date of untoward incident, which occurred on 02.02.2018. Hence, it was decided to evict all the shopkeepers. It is also claimed that in addition to safety hazard, the shop of the petitioner has also marred the artistic appearance of the temple.
(b)W.A(MD)No.1504 of 2018 is directed against the order passed by the learned single Judge in W.P(MD)No.2642 of 2018, dated 04.06.2018. The above said writ petition has been filed by Sri Meenakshi Sundareswarar Koil Kadaikarargal Sangam represented by its President for the relief of Mandamus, forbearing the respondents from evicting the shops situated inside Sri Meenakshi Sundareswarar Temple, Madurai.
(c)According to the appellant Sangam, they are only selling pooja http://www.judis.nic.in articles and religious books. The shops are in existence from time 18 immemorial. In the affidavit, it is also admitted by the deponent that fire that broke out on 02.02.2018, near the eastern tower of the temple had destroyed 19 shops including shop No.72 that was allotted to the Secretary of the appellant sangam and all the important documents pertaining to the appellant sangam have been destroyed in the fire accident. According to them, they are not encroachers, they have been allotted the shops by the respondents and they are also regular in payment of rent.
(d)However, learned Special Government Pleader pointed out that the very same appellant sangam had filed W.P(MD)No.14350 of 2018 for a mandamus, directing the third respondent to permit the sangam to open shops who are running the shops at Amman Sannathi and Veeravasantharayer Mandapam by receiving the undertaking affidavit as directed by the impugned judgment of the learned single Judge. In the said writ petition, this Court had granted liberty to the sangam to approach the Joint Commissioner, the third respondent therein seeking re- possession of the 51 lease hold shops in Arulmigu Meenakshi Amman Sannathi alone to the respective lessees, along with individual affidavits of undertaking to vacate the premises on or before 31.12.2018 and the lease hold shop owners shall also remit the entire arrears. On receipt of such affidavits of undertaking as well as the arrears, the third respondent therein was directed to permit the members of the sangam to continue with the possession of the respective shops. In view of the above, learned http://www.judis.nic.in 19 Special Government Pleader contended that the appeal filed as such by the sangam is not maintainable. They have already given undertaking as per the impugned order as well as pursuant to the order passed in W.P(MD)No.14350 of 2018.
(e)W.A(MD)No.1505 of 2018 is directed against the order passed by the learned single Judge in W.P(MD)No.4665 of 2018, dated 04.06.2018. The said writ petition was filed for the issuance of writ of mandamus directing the respondents to allot Kunnathur Chambaiyan Chathiram situated at 86, East Avani Moola Street, Madurai -1 or Old Central Vegetable market situated at Town Survey No.580/1, Madurai Town as alternative place for the shop owners who are running the shop at Veeravasantharayer Mandapam and Amman Sannathi, Arulmigu Meenakshi Sundareswarar Temple, Madurai by considering their representation dated 13.02.2018.
(f)The appellant relied on the minutes of the meeting in Ma.Po/2/21705/2015, undated and unsigned by the Commissioner. The relevant portion of the said minutes is extracted as under:-
“jw;nghJ !;khh;l; rpl;o jpl;lj;jpd; fPH; g[Jkz;lgk; gFjpapy; cs;s filfis khw;wpaikf;ft[k; mUs;kpF kPdhl;rpak;kd; jpUf;nfhtpy; cl;gFjpapy; cs;s filfspy; jP tpgj;J Vw;gl;l fhuzj;jpdhy; mg;gFjpapy; cs;s filfis khw;wpaikf;ft[k; jpl;lkplg;gl;L Vw;fdnt moj;jsk; tiu fl;lg;gl;L epWj;jp itf;fg;gl;l Fd;dj;Jhh; rhk;gpad; rj;jpuj;jpy; khw;wpaikf;f U:/8/20 nfho kjpg;gPl;oy; tphpthd jpl;l mwpf;if jahh; bra;ag;gl;L murpd; jpUj;jpa eph;thf xg;g[jYf;F mDg;gp itf;fg;glt[s;sJ.
jw;nghJ jahh; bra;ag;gl;Ls;s fl;ol totikg;ghdJ Vw;fdnt moj;jsk; mikf;fg;gl;Ls;s fl;ol totikg;gpid fhl;oYk; khWgLk; http://www.judis.nic.in fhuzj;jpdhy; nkw;go fl;lg;gl;Ls;s Fd;dj;Jhh; rhk;gpad; rj;jpuj;jpd;20
moj;jsg; gFjpapid Kw;wpYkhf ,oj;J mfw;Wtjw;F khkd;wj;jpd;
xg;g[jiyf; nfhUk; Mizahsh; mth;fspd; Fwpg;g[/”
(g)It appears that representations had been given to various authorities, including the Commissioner, HR & CE, the District Collector, the Commissioner, Madurai Corporation to consider their grievance and give them alternate accommodation, as they had to vacate from the Veeravasantharayer Mandapam and Amman Sannathi, Arulmigu Meenakshi Sundareswarar Temple, Madurai.
(h)Already the temple had given a reply on 21.08.2018 that there is no temple land that is vacant to accommodate the members of the appellant Sangam as an alternative place. Therefore, the present writ petition was filed by the Sangam seeking to allot shops in Kunnathur Chambaiyan Chathiram situated at 86, East Avani Moola Street, Madurai
-1 or Old Central Vegetable market situated at Town Survey No.580/1, Madurai Town.
(i)Learned counsel for the Commissioner, Madurai Corporation submitted that multilevel car parking near Meenkashiamman Temple and heritage bazaar at Old Central Market (North & East Entry) and also construction of tourism plaza at off street parking area near Meenakshi Amman Temple are proposed and invitation for bids has been issued as early as on 30.07.2018. The constructions are designed only for the above mentioned purpose. It is also expressed that there is no space available http://www.judis.nic.in to the temple to accommodate the vendors.21
(j)However, it is submitted by the learned counsel for the appellant that Kunnathur Chambaiyan Chathiram situate at 86, East Avani Moola Street, Madurai -1 is now kept vacant and there is a proposal to construct commercial complexes in the said place. In such event, they may be accommodated in the commercial complex to be constructed therein.
(k)Arulmighu Sevugaperumal Temple, Madurai.
The writ appeals in W.A(MD)Nos.1427 to 1442 of 2018 relate to the writ petitions filed by the tenants of Arulmighu Sevugaperumal Temple, Madurai. So far as the appellants are concerned, they are having their shops inside the shopping complex constructed by the temple. It is stated that the circular dated 14.02.2018 issued by the HR & CE Department is with respect to Senior Grade Temple whereas the above said temple does not fall under the category of Senior Grade Temple and not been administered either by the Assistant Commissioner or Joint Commissioner but by the Grade II, Executive Officer. It is the contention of the appellants that they have valid lease deed in their favour and the shopping complex is constructed by the temple for the purpose of letting them out and the same is also situate only outside the temple. There are about 16 tenants. Five shops are in the first floor and 12 shops in the ground floor. The lease in favour of the persons occupying the first floor expired as early as in 2016. In the ground floor, three tenants have not filed any writ petition and for about 10 of the tenants, the lease is still in http://www.judis.nic.in 22 subsistence. It is also stated that two of the tenants also surrendered possession.
Arulmigu Ramanatha Swamy Temple, Rameshwaram, Ramanathapuram District :
18.The appellants/writ petitioners submitted that they were only selling pooja articles and conch articles in the leased out premises outside the temple either near the car or adjacent to compound wall and they need not be evicted from the said premises under the guise of “policy decision”. It is their contention that their presence would not create any safety hazard to the temple.
18.1. The respondents claimed that the presence of the shops poses imminent danger to the temple and the claim of the appellants/writ petitioners that the articles being sold by them cause no danger to the temple is an imaginary assurance, which cannot form the basis to entertain their claim.
19.Though some of the shop holders with respect to the other temples covered under the impugned order are not before this Court, what they pleaded before the writ court was they could not be evicted without terminating the lease and without undertaking the mandatory requirements stipulated under the statute.
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20.The sheet-anchor of the contentions of the learned Senior Counsels as well as the learned counsels for the appellants is that the procedures contemplated under the Act have been given a go-by by the authorities and without there being any enquiry, by affording an opportunity of hearing to the lessees, the impugned notices have been served on the appellants seeking straight away to vacate and hand over the shops, in gross violation of principles of natural justice.
21.Reliance was placed upon the relevant provisions of the Act to draw a distinction between the temple premises and the premises which fell outside the temple. It is their further contention that mere issuance of a circular would not override the mandate contemplated under the statute and the failure of the authorities to follow such procedure would render the impugned notices illegal. It is their further submission that as per Article 166 of the Constitution, all executive action of the Government of a State shall be expressed to be taken in the name of the Hon'ble Governor, and as such, the mere issuance of a press release in the name of the Hon'ble Chief Minister followed by the Circular issued by the Commissioner can have no such seal of approval of the Hon'ble Governor. Accordingly, it is pleaded that when the Act governing the field, under the guise of policy decision, which has no seal of approval, procedure contemplated under the Statute cannot be ignored. It is also submitted that the action of the authorities is infringing the rights conferred upon http://www.judis.nic.in 24 the appellants/writ petitioners to practise any profession, or to carry on any occupation, trade or business and also protection of life and personal liberty under Articles 19(1)(g) and 21 of the Constitution respectively. They also submitted that the learned Single Judge erred in not appreciating the violation committed by the authorities in its proper perspective.
22.The learned Additional Advocate General assisted by learned Special Government Pleader, Additional Government Pleader and Government Advocates submitted that the Government took policy decision to protect the heritage value of the temples and to implement such policy decision, based on the circular of the Commissioner, the impugned notices were served on the shop-owners, which cannot be faulted with. It is also claimed that the powers of the authorities under Section 77 of the Act is discretionary and it is not mandatory and hence, the shop holders have no right to insist upon the authorities to exercise such power in order to permit them to sell flowers and pooja articles inside the premises of the temples. They also relied upon the other relevant provisions of the Act to substantiate their stand. It is their contention that the learned Single Judge was right in dismissing the writ petitions and there is no illegality in the said order and the learned Single Judge, considering the difficulties expressed by the appellants/writ petitioners, gave them time till 31.12.2018 with certain conditions. http://www.judis.nic.in 25
23.We have considered the rival submissions and perused the materials placed on record.
24.Admittedly, the first batch of appeals, i.e., W.A.(MD)Nos.686 to 698 of 2018 came to be filed against the order of the learned Single Judge affirming the orders of eviction as a safety measure.
25.The entire issue involved in these appeals originated from the Circular issued by the Commissioner, in Circular Na.Ka.No.6614/2018/Z1, dated 14.02.2018. The circular is the outcome of the meeting chaired by the Hon'ble Chief Minister of Tamil Nadu with relevance of the fire audit that has to be done periodically in the temples. As a first measure, it was decided to conduct the fire audit in the senior grade Temples and submit a report on or before 20.02.2018, including compulsory audit as enumerated in the said circular. Clause (xiv) of the said Circular reads as follows :
“xiv) jpUf;nfhapy;fspy; jP tpgj;J jtph;f;ft[k;.
mtw;wpd; ghJfhg;ig fUjpa[k;. jpUf;nfhapy;
tshfj;jpw;Fs;Sk;. jpUf;nfhapy; kjpy;Rtiu xl;oa[k;
mike;Js;s filfis chpa tHpKiwfis gpd;gw;wp
mfw;wpl ntz;Lk;/ mt;thW mfw;wg;gl;l filfis ntW ,l';fspy; xJf;fPL bra;a[k; rhj;jpaf;TWfis Muha ntz;Lk;/” http://www.judis.nic.in 26
26. Based on the said circular, notices were issued to the occupants of the temple premises and also adjoining temple walls calling upon them to vacate the same forthwith. Such notices were issued based on the circular, which was said to be the policy decision taken by the Government. The said action is now challenged on various grounds by the lessees.
27.Invariably, the submissions made by the appellants are with reference to the provisions in the Act, which have to be analysed with the facts and circumstances of the case.
27.1.The occupants of the shops in Thayumanava Swamy Temple, Malaikottai, Trichy, contended that their shops situate not within the temple premises, but it is only outside and that the sanctum sanctorum of the temple is situate on a hillock and the shops are far away from the actual temple premises.
27.2.The occupants of the shops in Arulmighu Dhandayuthapani Swamy Thirukoil, Palani, made similar submission that the shops were constructed and leased out by the temple outside the Mangambal Mantapam for the benefit of flower vendors and pooja articles sellers and they are 200 meters away from the sanctum sanctorum. The shops would never cause any safety hazard to the temple.
27.3.The shop vendors in Arulmighu Nellaiappar Arultharum Gandhimathi Ambal Temple, Tirunelveli, claimed that they have been http://www.judis.nic.in 27 running the shops outside the temple in the road laid in between the temple and Kudavarai Mantapam entrance/Swamy Anuppu Mantapam/Ambal Anuppu Mantapam, wherein, motor vehicles are allowed, including public transport and the shops are in existence for more than 60 years and the respondents had allowed it to be put to commercial use.
27.4.It is pleaded by the occupants of the shops in Arulmigu Nachiyar (Andal) Temple, Srivilliputhur, Virudhunagar District that they are selling only pooja articles, Palkova, toys, etc. and the shops are situated only in the mantapams and not within the temple and there is no harm to the temple in selling their products. They claimed that the temple itself is selling prasadam that too inside the temple. It is also claimed that their shops have not marred the artistic appearance of the temple necessitating the authorities to resort to eviction, due to which, they cannot eke out their lives.
27.5.The shop vendors in the other temples have also made similar claims.
28. In this regard, it is relevant to advert to the definition of “temple” set out in Section 6(20) of the Act. The said provision is usefully extracted below :
"6 (20) “temple” means a place by whatever designation known, used as a place of public religious worship and dedicated http://www.judis.nic.in to, or for the benefit of, or used as of right by, the Hindu 28 community or of any section thereof, as a place of public religious worship"
29.It is settled proposition that a temple is a public temple when it is dedicated to public religious worship and the public have free access to the same as a matter of right, no matter whether the temple is situated on a hill or inside the township or having different architecture etc. It is only the access to the public to go to the temple to the religious worship that makes the temple. The temple also would include the properties belonging to it.
30.The Explanation to Section 6(20) makes it clear that even if a temple situated outside the State has the properties inside the State, control shall be exercised over the temple in accordance with the provisions of the Act, insofar as the properties of the temple inside the State. That is, only so far as the applicability of the Act is concerned, when the temple has got properties in and around the actual place of worship and the same is used for religious worship, it has to be considered as part of the temple. The classic example for this would be the Pudu Mantapam in Madurai and Swamy and Ambal Anuppu Mantapams in Tirunelveli. Though it is argued that Section 6(20) cannot be applied in a blanket manner, it is admitted that the Aippasi Thirukalyana Vizha is conducted only in the Ambal Anuppu Mantapam in Arulmighu http://www.judis.nic.in Nellaiappar Arultharum Gandhimathi Ambal Temple. 29
31.Mr.H.Arumugham, learned counsel for the appellants/the shopkeepers in Arulmighu Nellaiappar Arultharum Gandhimathi Ambal Temple, Tirunelveli, contended that during the said festival time, the shops will be temporarily closed enabling the deity to be brought to the Anuppu Mantapam and after the festival is over, the deity is sent back to the temple. There is a road between the temple and this Mantapam, where, the shops of appellants are situated, and in the said road, motor vehicles are allowed, including public transport. Hence, the contention is that it is not either coming within the temple premises or touching the compound wall. It is also stated that these shops are in existence for more than 60 years and the temple had allowed it to be put to commercial use. Therefore, it is contended that the order of the learned Single Judge bringing this Anuppu Mantapams and the shops situated therein under the definition of Section 6(20) is unsustainable.
32.It is relevant to advert to the definition of “temple” set out in Law Lexicon as under:-
“Temple means a place by whatever designation known, used as a place of public religious worship, and dedicated to, or for the benefit of or used as of right by, the Hindu Community or any section thereof as place of public religious worship and includes sub-shrines, utsava mantapas, tanks and other necessary appurtenant structures and land”.
http://www.judis.nic.in 30
33.Section 23 of the Act confers wide powers on the Commissioner in respect of temples and religious endowments. The proviso to the said Section only says that the Commissioner shall not pass any order prejudicial to any temple or endowment, unless the trustees concerned have a reasonable opportunity of making their representations. Thus, Section 23 enables the Commissioner to exercise wide powers of general superintendence and control, including the power to pass any order which may be deemed necessary to ensure that the temples are properly administered and the income is duly appropriated for the purposes, for which, they were founded. Therefore, the administration of the temple is the first criteria.
34.Learned counsel for the appellants further submitted that they were all lessees in possession inducted by the temple authorities and their possession is legal and they cannot be directed to vacate without adhering to the provisions of law. Section 78 of the Act provides for removal of the encroachers from any religious institution. The said provision is usefully extracted hereunder:
“78. Encroachment by persons on land or building belonging to charitable or religious institution or endowment and the eviction of encroachers — (1) Where the Assistant Commissioner having jurisdiction either suo motu or upon a complaint made by the trustee has reason to believe that any person has encroached upon (hereinafter in this section http://www.judis.nic.in referred to as “encroacher”) any land, building, tank, well, 31 spring or water-course or any space wherever situation belonging to the religious institution or endowment hereinafter referred to as “the property”, he shall report the fact together with relevant particulars to the Joint Commissioner having jurisdiction over the division in which the religious institution or endowment is situated.
Explanation.— For the purpose of this section, the expression “encroacher” shall mean any person who unauthorisedly occupies any tank, well, spring or water- course or any property and to include-
(a) any person who is in occupation of property without the approval of the competent authority (sanctioning lease or mortgage or licence) and
(b) any person who continues to remain in the property after the expiry or termination or cancellation of the lease, mortgage or licence granted to him.
(2) Where, on a perusal of the report received by him under sub-section (1), the Joint Commissioner finds that there is a prima facie case of encroachment, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling on him to show cause before a certain date why an order requiring him to remove the encroachment before the date specified on the notice should not made. A copy of the notice shall also be sent to the trustees of the religious institution or endowment concerned.
(3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed.
(4) Where after considering the objections, if any, of the encroacher received during the period specified in the notice referred to in sub-section (2) and after conducting such inquiry as may be prescribed, the Joint Commissioner is http://www.judis.nic.in satisfied that there has been an encroachment, he may by 32 order and for reasons to be recorded, require the encroacher to remove the encroachment and deliver possession of the property (land or building or space) encroached upon to the trustee before the date specified in such order.
(5) During the pendency of the proceeding, the Joint Commissioner shall order the encroacher to deposit such amount as may be specified by him in consideration of the use and occupation of the properties in question in the manner prescribed.”
35.In most of the cases, the appellants, though claiming to be lessees, have been remitting the rent periodically, the lease deeds have not been produced. There is also no whisper about the renewal of the lease as on date. Even though they may be remitting rents, whether they can be deemed to be lawful lessees. Once the lease has come to an end, the lessee cannot be termed to be a person holding lease over the shop, but he can only be termed as “encroacher/trespasser”. However, it is argued that even they are termed to be a encroacher/trespasser, they can be vacated from the premises, by due process of law.
36.It is the uniform contention of the appellants that the properties, being the temple properties and the respondents, being the public temples, they can act adopting the procedure contemplated under Section 78 of the Act. Per contra, the contention of the learned Additional Advocate General is that the contention of the appellants cannot be countenanced, http://www.judis.nic.in as their claim of occupation of the premises is for several 33 decades, but as per Section 34 of the Act, if a lease is executed for a term exceeding five years, unless it is sanctioned by the Commissioner, the same is null and void. Besides, Section 34(3) further provides that a copy of the order made by the Commissioner under the said Section shall be communicated to the Government and the same shall be published in such manner as may be prescribed. Section 34 of the Act reads as follows :
"34.Alienation of immovable trust property.— (1) Any exchange, sale or mortgage and any lease for a term exceeding five years of any immovable property, belonging to, or given or endowed for the purpose of, any religious institution shall be null and void unless it is sanctioned by the Commissioner as being necessary or beneficial to the institution :
Provided that before such sanction is accorded, the particulars relating to the proposed transaction shall be published in such manner as may be prescribed, inviting objections and suggestions with respect thereto; and all objections and suggestions received from the trustee or other persons having interest shall be duly considered by the Commissioner:
Provided further that the Commissioner shall not accord such sanction without the previous approval of the Government.
Explanation.— Any lease of the property above mentioned through for a term not exceeding five years shall, if it contains a provision for renewal for a further term (so as to exceed five years in the aggregate), whether subject to any condition or not, be deemed to be a lease for a period http://www.judis.nic.in exceeding five years.34
(2) When according such sanction, the Commissioner may impose such conditions and give such direction, as he may deem necessary regarding the utilization of the amount raised by the transaction, the investment thereof and in the case of a mortgage regarding the discharge of the same within a reasonable period.
(3) A copy of the order made by the Commissioner under this section shall be communicated to the Government and to the trustee and shall be published in such manner as may be prescribed.
(4) The trustee may, within three months from the date of his receipt of a copy of the order, and any person having interest may within three months from the date of the publication of the order appeal to the Court to modify the order or set it aside.
(4-A) The Government may issue such directions to the Commissioner as in their opinion are necessary, in respect of any exchange, sale, mortgage or lease of any immovable property, belonging to, or given or endowed for the purpose of, any religious institution and the Commissioner shall give effect to all such directions.
(5) Nothing contained in this section shall apply to the imams referred to in section 41.”
37.The power under Section 34 is plenary to be exercised by the authorities. Even presuming that the alleged leases were for less than five years, the Explanation to Section 34 makes it very clear that even though for the lease not exceeding five years, if it contains a provision for renewal for a further term, which would exceed five years in the aggregate, http://www.judis.nic.in it should be deemed to be a lease for a period exceeding five 35 years. In view of the above Explanation that the leases deemed to be exceeding five years, for which, sanction of the Commissioner is required. There is no whisper about the sanction by the Commissioner, as mandated under Section 34 of the Act. Hence, the said contention also has to be rejected.
38.The next submission is that the lessee can continue to be occupation in the temple premises as per the proviso to Section 77 of the Act. The said provision is as follows :
77.Transfer of lands appurtenant to or adjoining religious institutions prohibited except in special cases — (1) Notwithstanding anything contained in section 34, no trustee of a religious institution shall lease or mortgage with possession or grant a licence for the occupation of —
(a) any land belonging to the religious institution which is appurtenant to or adjoins the religious institution, or any sacred tank, well, spring or water course, appurtenant to the religious institution whether situated within or outside the precincts thereof, or
(b) any space within or outside the prakarams, mantapams, courtyards or corridors of the religious institution ;
Provided that nothing contained in this sub-section shall apply to the leasing or licensing of any such land or space for the purpose of providing amenities to pilgrims or of vending flowers or other articles used for worship or of holding for specified periods, fairs or exhibitions during festivals connected with the religious institution. http://www.judis.nic.in 36 (2) Any lease or mortgage with possession or licence in contravention of the provisions of sub-section (1) shall be null and void.
(3) Notwithstanding anything contained in sub-section (1) or (2), the Commissioner may sanction the lease or mortgage with possession or granting of a licence for the occupation of any such land or space as is mentioned in sub- section (1) and situated outside the precincts of a religious institution for any purpose other than a purpose mentioned in the proviso to sub-section (1).”
39.Though the proviso to Section 77 says that nothing contained in sub-section (1) shall apply to the leasing or licensing of any such land or space for the purpose of providing amenities to pilgrims or of vending flowers or other articles used for worship either for a specified time or during the festivals connected with the religious institution, it is not the case of every appellants that they are only vending flowers or pooja articles with the sanction of the Commissioner, as contemplated under Section 34. Section 77(3) further provides that only the Commissioner is empowered to give permission for the purpose of lease or mortgage of any such land or space which are situate outside the precincts of a temple for any purpose other than the purpose mentioned in the proviso to sub- section (1). On either way, it is within the temple premises or outside the temple premises, unless the appellants got the sanction from the Commissioner for the alleged lease or license, they cannot be deemed to be a lawful lessee or licensee. When their possession is not with the legal http://www.judis.nic.in 37 sanction, the applicability of Sections 78 and 80 of the Act may not have relevance.
40.At this juncture, it is relevant to refer to the provision under Section 80 of the Act, which reads thus :
80.Eviction of lessees, licensees or mortgages with possession in certain cases.— (1) Where the Assistant Commissioner having jurisdiction over the area in which the religious institution is situated is of the view that the lessee, licensee or mortgagee with possession of any land belonging to the religious institution wherever it is situated or any sacred tank, well, spring or water course, appurtenant to the religious institution whether situated within or outside the precincts thereof, or any space within or outside the prakarams, mantapams, courtyards or corridors of the religious institution, has taken any action which has marred or is likely to mar the artistic appearance or the religious atmosphere of the religious institution, the Assistant Commissioner shall report the fact together with relevant particulars to the Joint Commissioner or the Deputy Commissioner, as the case may be, having jurisdiction over the area in which the religious institution is situated.
(2)The Joint Commissioner or the Deputy Commissioner, as the case may be, if satisfied that the artistic appearance or the religious atmosphere of the religious institution has been marred or is likely to be marred by the action of the lessee, licensee or mortgagee with possession shall cause to be served on the lessee, licensee or mortgagee concerned, a notice calling upon him to show cause before a certain date why an order terminating the http://www.judis.nic.in lease license or cancelling the mortgagee, and requiring the 38 lessee, licensee or mortgagee, as the case may be, to deliver possession of the property which is the subject of the lease, licence or mortgage to the trustee before a date specified in the notice should not be made. A copy of the notice shall also be sent to the trustee of the religious institution concerned.
(3) The notice referred to in sub-section (2) shall be served in such manner as may be prescribed.
(4) After considering the objections, if any, of the lessee, licensee or mortgagee, received within the period specified in the notice referred to in sub-section (2), the Joint Commissioner or the Deputy Commissioner, as the case may be, may, if he decides that the artistic appearance or the religious atmosphere of the religious institution has been marred or is likely to be marred by the action of the lessee, licensee or mortgagee by order terminate the lease or license or cancel the mortgage and require the lessee, licensee or mortgagee to deliver possession of the property which is the subject of the lease, licence or mortgage to the trustee before a date specified in the order.
(5) The order of the Joint Commissioner or the Deputy Commissioner, as the case may be, shall be in writing and shall contain the grounds on which he has passed the order.”
41.A distinction between Sections 78 and 80 of the Act is that Section 78 deals with eviction of encroachers, whereas, Section 80 deals with eviction of persons in lawful possession. The grievance of the appellants is that either they are deemed as encroachers being in unlawful possession or the lessors or licensors in lawful possession, they can be http://www.judis.nic.in 39 evicted only in the manner known to law. While discussing the mode of eviction, insofar as the encroachers are concerned, Section 78 of the Act assumes relevance. As per the said provision, the Assistant Commissioner has to report to the Joint Commissioner with the relevant particulars regarding the encroachers and the Joint Commissioner, on subjective satisfaction of the encroachment, will cause notice to be served upon the encroachers to show cause as to why they should not be removed on or before the date specified on the notice.
42.Section 80 of the Act deals with eviction of lessees, licensees or mortgagees from the land, sacred tank, well, spring or water-course, appurtenant to the religious institution whether situated within or outside the precincts of the temple, or any space within or outside the prakarams, mantapams, courtyards or corridors of the religious institution, when their action has marred or is likely to mar the artistic appearance or the religious atmosphere of the religious institution, in the same manner as detailed above.
43.In some of the temples even commercial shops under the name and style of “prasadam stalls” are being run by the temple or someone associated with the temple. Even it is argued before us that in Arulmigu Nachiyar (Andal) Temple, Srivilliputhur, Virudhunagar District, prasadam stalls have been run by the temple itself, that too inside the temple. It is http://www.judis.nic.in 40 not necessary to mention that only food prepared piously in the temple kitchen and offered to the deities in the temple in the traditional manner can be termed as prasadams. The food items prepared by some third parties outside the temple premises and sold inside the temple under the guise of “prasadams” is an act which is anti-religious and a fraud on the devotees visiting the temples and they are not certified for the Food Safety and Standards.
44.Law concerning temples and its properties are to be understood from the legal view that a temple is represented by its idol, which is a minor. So, those in charge of the temple properties and Courts have to protect the interest of an idol. Section 78 of the Act empowers the Joint Commissioner to serve notice on the encroacher, Section 79(3) bars the civil court jurisdiction. As on date, if an occupier of a temple land is a trespasser, the Government need not go to the civil court and the Joint Commissioner is the competent officer to declare whether he is trespasser or not.
45.The temples play an important role in the heritage of Tamil Nadu. Therefore, the conservation, maintenance and development of temple are important in view of the historical and archeological values of temples in Tamil Nadu. The Hindu Religious and Charitable Endowments Department claims to have been administering only the secular aspects of temple http://www.judis.nic.in 41 administration but in reality the management of temple and its properties are not done with required diligence. The Courts are empowered to take notice of the said fact and ensure the protection of the interests of an idol. The authorities are duty bound to ensure that the religious atmosphere is protected inside and outside the temples. Commercial establishments cannot be allowed to carry on business inside the temple. Though proviso to Section 77 of the Act permits lease/licence for vending flowers and pooja articles, the competent authorities have granted permission in many of the temples to the commercial vendors. Even though the lease may be as per proviso to Section 77, the licensees are carrying on their business of vending articles other than those used for pooja also. The authorities have also been sluggish in not taking any action at the right time and allow it to grow. The vendors inside the temple as licensees take advantage of their position and not only mar the architectural beauty of the place but also ruin the sentiments and faith of the devotees who come for worship by distracting their mind, thereby the purpose and sanctity of the visit to the temple is lost.
46.Though it is pleaded that the action of the temple authorities infringes the rights of the appellants/writ petitioners guaranteed under Article 19(1)(g) and 21 of the Constitution, we are unable to agree with the said submission. Of-course it is true that at the initial stage of their moving from the temples premises to the alternative place, their business http://www.judis.nic.in 42 may be not as it was. But, it may develop and grow after a reasonable period of time. Under such circumstances, it cannot be said that the present drive of the temple authorities infringe the rights of the appellant and they can very well eke out their livelihood, by choosing suitable alternative place on their own.
47.It is pertinent to observe that India, an ancient civilization and a modern nation, is studded with ancient and historical monuments. The forts and the palaces, the temples and the mosques are part of our heritage. They are the achievements of our ancestors. These mute witnesses of our history testify to our grandeur, our glory, our concerns, our traditions, our culture. In stones and wood, in rocks and bricks, in ivory and clay, they have frozen the past for us. They have to be preserved for posterity. It is not only the duty of the State to conserve them, it is equally the fundamental duty of each citizen to preserve them. Thus, Article 51(A)(f) of the Constitution enjoins the citizen “to value and preserve the rich heritage of our composite culture”.
48.In A.A.Gopalakrishnan Vs.Cochin Devaswom Board and others reported in (2007) 7 SCC 482, the Hon'ble Supreme Court has held that it is the duty of the Court to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. The relevant portion of the said decision is extracted http://www.judis.nic.in 43 hereunder:-
The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees/archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of “fences eating the crops” should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.”
49.At this juncture, it is noteworthy to mention that the rationale behind giving Hindu idols a juristic personality is best explained by P.R.Ganapathy Iyer in his Book on “Law relating to Hindu and Mohammedan Endowments”. “The ascription of a legal personality to the deity supposed to be residing in the image meets with all, practical purposes. The deity can be said to possess property only in an ideal sense and the theory is therefore not complete unless that legal personality is linked to a natural person.” http://www.judis.nic.in 50.It is claimed by the respondents that the Government has taken 44 a policy decision to evict the shops holders inside the temples' premises or abutting the compound walls of the temples in accordance with law, which was communicated by the Commissioner and the temple authorities have been implementing the same and such policy decision of the Government cannot be interfered by this Court. This Court is unable to countenance with the said submission for the simple reason that even if the policy decision of the Government suffers from mala fide, unreasonableness and arbitrariness. Such policy decision is taken with a larger public interest with reasonableness, the Court is hesitant to interfere with such policy decision. At this juncture, it is relevant to refer to the decision of a Division Bench of this Court in P.R.Pandian v. Union of India and Others, 2014 SCC Online Mad 1143, wherein, it was observed as follows :
“4.Taking a policy decision is in the domain of the executive authority of the State and the Court will not question the efficacy or otherwise of such public policy, so long as the same does not offend any provision of law.”
51.Though it is contended that Article 166 of the Constitution mandates that all executive action of the Government of a State shall be expressed to be taken in the name of the Hon'ble Governor, and since the same has not been done in the cases on hand, it cannot be termed as a policy decision. A Division Bench of this Court in Union of India (represented by Director-General, All India Radio), New Delhi and http://www.judis.nic.in 45 another V. K.S Krishnaswamy and others, 2005 (2) CTC 661, following the judgments of the Apex Court, held as follows :
“6. Article 77 of the Constitution of India deals with the conduct of business of the Government of India while Art. 166 of the Constitution of India deals with the conduct of business of the Government of a State. The provisions under both the articles are verbatim the same. In Dattatraya Moreshwar v. State of Bombay [A.I.R 1952 S.C 181], a Constitution Bench was considering a challenge to the order of the Government confirming the detention order. The challenge was on the ground that the State Government failed to comply with the requirements of S. 11(1) of the Preventive Detention Act, 1950. In that context, the Constitution Bench held as hereunder :
“Strict compliance with the requirements of Art. 166 gives an immunity to the Order in that it cannot be challenged on the ground that it is not an order made by the Governor. If, therefore, the requirements of that article are not complied with, the resultant immunity cannot be claimed by the State. This however does not vitiate the order itself…….. Art. 166 directs all executive action to be expressed and authenticated in the manner therein laid down but an omission to comply with those provisions does not render the executive action a nullity …….. such a decision has been in fact taken by the appropriate Government is amply proved on the record”.
In another judgment of the Hon'ble Supreme Court of India in the case reported in State of Bombay v. Purushottam Jog Naik [A.I.R 1952 S.C 317], a three- Judges Bench of the Supreme Court held, while http://www.judis.nic.in considering Art. 166(1) of the Constitution of India, as 46 hereunder:
“The Constitution does not require a magic incantation which can only be expressed in a set formula of words. What the Court has to see is whether the substance of the requirement of Art. 166(1) is there”.
52.Following the proposition stated in the above judgment, we are of the considered opinion that an omission to comply with certain provision does not render the executive action a nullity when it is done for the larger public interest.
53.Now coming to the question concerning the violation of principles of natural justice, no doubt it is the basic principle of law that no action shall be taken without providing a hearing to the affected party. However, this principle is 'flexible' according to the situations and need not be followed as an empty formality. It all depends upon the kind of function performed and to the extent to which a person is likely to be affected. In this regard, it is relevant to note that the Hon'ble Supreme Court in Aligarh Muslim University V. Mansoor Ali Khan, AIR 2000 SC 2783, while dealing with applicability of "useless formality" theory held as follows :
"The “useless formality” theory, it must be noted, is an exception. Apart from the class of cases of “admitted or indisputable facts leading only to one conclusion” referred to http://www.judis.nic.in above, there has been considerable debate on the application 47 of that theory in other cases. The divergent views expressed in regard to this theory have been elaborately considered by this Court in M.C. Mehta [(1999) 6 SCC 237] referred to above. This Court surveyed the views expressed in various judgments in England by Lord Reid, Lord Wilberforce, Lord Woolf, Lord Bingham, Megarry, J. and Straughton, L.J. etc. in various cases and also views expressed by leading writers like Profs. Garner, Craig, de Smith, Wade, D.H. Clark etc. Some of them have said that orders passed in violation must always be quashed for otherwise the court will be prejudging the issue. Some others have said that there is no such absolute rule and prejudice must be shown. Yet, some others have applied via media rules. We do not think it necessary in this case to go deeper into these issues. In the ultimate analysis, it may depend on the facts of a particular case."
54.Further, it is relevant to note that the Hon'ble Supreme Court in Karnataka State Road Transport Corporation v. S.G. Kotturappa (2005) 3 Supreme Court Cases 409 has held as follows:-
"24. .. .. .. .. .. The question as to what extent, principles of natural justice are required to be complied with would depend upon the fact situation obtaining in each case. The principles of natural justice cannot be applied in vacuum. They cannot be put in any straitjacket formula. The principles of natural justice are furthermore not required to be complied with when it will lead to an empty formality. .. .. .. .."
55.In another judgment in Municipal Committee, Hoshiarpur v. http://www.judis.nic.in 48 Punjab State Electricity Board, (2010) 13 Supreme Court Cases 216, the Hon'ble Supreme Court has held as follows:-
32.The two rules of natural justice, namely, nemo judex in causa sua, and audi alteram partem now have a definite meaning and connotation in law and their contents and implications are well understood and firmly established; they are nonetheless non-
statutory. The court has to determine whether the observance of the principles of natural justice was necessary for a just decision in the facts of the particular case. (Vide Board of Mining Examination and Chief Inspector of Mines v. Ramjee [(1977) 2 SCC 256 : 1977 SCC (L&S) 226 : AIR 1977 SC 965] , SCC p. 262, para 13; Union of India v. Tulsiram Patel [(1985) 3 SCC 398 : 1985 SCC (L&S) 672 : AIR 1985 SC 1416] ; and ECIL v. B. Karunakar [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704: AIR 1994 SC 1074] .)
33.There may be cases where on admitted and undisputed facts, only one conclusion is possible. In such an eventuality, the application of the principles of natural justice would be a futile exercise and an empty formality. (Vide State of U.P. v. Om Prakash Gupta [(1969) 3 SCC 775 : AIR 1970 SC 679], S.L. Kapoor v.
Jagmohan[(1980) 4 SCC 379 : AIR 1981 SC 136] and
U.P. Junior Doctors' Action Committee v. Dr. B.
Sheetal Nandwani, (1990) 4 SCC 633 : AIR 1991 SC
909."
http://www.judis.nic.in
56.In yet another judgment in Dharampal Satyapal Ltd v. CCE, 49 (2015) 8 SCC 519, the Hon'ble Supreme Court, after having considered the earlier judgments, has held as follows:-
39.We are not concerned with these aspects in the present case as the issue relates to giving of notice before taking action. While emphasizing that the principles of natural justice cannot be applied in straitjacket formula, the aforesaid instances are given.
We have highlighted the jurisprudential basis of adhering to the principles of natural justice which are grounded on the doctrine of procedural fairness, accuracy of outcome leading to general social goals, etc. Nevertheless, there may be situations wherein for some reason—perhaps because the evidence against the individual is thought to be utterly compelling—it is felt that a fair hearing “would make no difference”— meaning that a hearing would not change the ultimate conclusion reached by the decision-maker—then no legal duty to supply a hearing arises. Such an approach was endorsed by Lord Wilberforce in Malloch v.
Aberdeen Corpn. [(1971) 1 WLR 1578 : (1971) 2 All ER 1278 (HL)] , who said that: (WLR p. 1595 : All ER p. 1294) “… A breach of procedure … cannot give [rise to] a remedy in the courts, unless behind it there is something of substance which has been lost by the failure. The court does not act in vain.” Relying on these comments, Brandon L.J. opined in Cinnamond v. British Airports Authority [(1980) 1 WLR 582 :
(1980) 2 All ER 368 (CA)] that: (WLR p. 593 : All ER p. 377) http://www.judis.nic.in “… no one can complain of not being given an 50 opportunity to make representations if such an opportunity would have availed him nothing.” In such situations, fair procedures appear to serve no purpose since the “right” result can be secured without according such treatment to the individual."
57. Though the Hon'ble Apex Court has observed that the applicability of the theory may depend on the facts of a particular case, if the admitted or indisputable facts leading only to one conclusion, then, there is no bar to apply the theory. Even in the enquiry what the authorities have to decide is the question. When the Government took the public policy decision to evict and vacate and clear the temple premises inside and outside for the reason of safety, even any notice as contemplated under Sections 78 and 80 of the Act and the consequential enquiry would not serve any purpose. Such admitted facts, which are not in dispute, are anaylsed with the touchstone of the "useless formality theory", the inevitable conclusion would be that giving an opportunity of being heard to the appellants is an empty formality, as it would never lead to any conclusion, other than the one mentioned in the notice, i.e., eviction.
58.In such view of the discussion, the question arises for determination is whether the principles of natural justice concerning audi alteram partem theory can be given a go-by in the instant case? http://www.judis.nic.in 51
59.The narration of the facts coupled with the judgments makes it abundantly clear that the omission to comply with the said theory does not render the execution action a nullity, as the Commissioner himself directed all the Officers managing the affairs of the temples to take aforementioned steps immediately for the safety of temples. The provisions under Sections 78 and 80 of the Act which are extracted above, make it crystal clear that the Assistant Commissioner of the temples or the Assistant Commissioner having jurisdiction over the temples has to report with the relevant particulars to the Joint Commissioner or the Deputy Commissioner, as the case may be, about the trespassers or lessee, licensor or mortgagee causing action, which has marred or is likely to mar the artistic appearance or the religious atmosphere of the religious institution.
60. As observed by us at the inception, the temples of Tamil Nadu are the living heritage of India. The temples have immense cultural significance, because of their historical, architectural, artistic, archaeological, socio-religious and economic values. The temples of Tamil Nadu find a place in World Heritage List. Construction of new temples in various countries by the Tamil communities itself is a classic example to the temple architecture tradition of Tamil Nadu.
61. It is a great challenge to define a singular conservation approach for the temples of Tamil Nadu, considering the complexity as a living heritage. Unfortunately and admittedly, the HR & CE Department http://www.judis.nic.in 52 neither has the capacity nor the qualified experts to carry out the conservation works at large scale and number. The multiple stakeholders involved in the functioning of the temple makes it difficult to have a defined approach. The sentiments of the people, the faith, historic architectural values and many more are the factors to be considered in the conservation process. The conservation of the temples should be in adherence to the Agamasastras, State and Central Statutes, scientific approach to the structural analysis. To put it simple, it is a herculean task to involve all the devotees in the process and sensitize them regarding history and significance of the temple and explain to them about their contribution in this process.
62. In fact, considering all these aspects, this Court had asked the United Nations Educational, Scientific and Cultural Organization ("UNESCO") to provide a factual report on the conservation, approach and processes followed in some these temples. After making field inspection in so many temples and assessing the ground reality, the final recommendations of the UNESCO qua the role of HR & CE Department would run thus :
"The sheer number of temples being handled by HR & CE is unimaginable and unless a very coherent operational structure along with an army of experts from various fields, skilled sthapthys and crafts persons is available at hand, the task of simultaneously conserving/maintaining/ repairing http://www.judis.nic.in temples is not feasible. Either HR&CE should limit itself to the 53 simple supervision and administration of immovable properties as per the Tamil Nadu HR&CE Act while the conservation works are assigned to a specialised department such as Archaeology or it should re-organise its structure including Technical experts at various levels and, ensure the empanelment of only qualified Sthapathis and contractors for such specialised works."
63. A general guidelines to be followed are also given. The step now taken by the HR & CE Department is only to vacate the shops inside and outside the temple complex and restore the original glory. The conservation is yet to begin. The fire accident is only an eye-opener for the Tamil society to preserve their priceless and precious heritage and architecture as reproducing the same is next to impossible. The responsibility of maintaining our valued culture and heritage should come within and should not be challenged before the Court of law.
64. In the light of the above discussions, all the writ appeals are dismissed. The learned single Judge had already granted time till the end of this year i.e., 31.12.2018 on filing an affidavit of undertaking. Though the appeals were filed, no interim order was granted by this Court. Therefore, the order of the learned single Judge is confirmed and the authorities are directed to evict the appellants forthwith.
65. So far as the appellants in W.A(MD)Nos.1427 to 1442 of 2018 are concerned, we are of the view that the said circular will not apply to http://www.judis.nic.in 54 the temple which is not classified as a Senior Grade Temple. As stated earlier, as the lease of some of the shops are still in subsistence, it is open to the authorities either to renew the lease of the lessees for whom the lease is already expired and also to renew their lease which may come to an end in future in the manner known to law. As they do not come under the purview of the circular so far as the appellants in W.A(MD)Nos.1427 to 1442 of 2018 are concerned, the appeals are allowed. No costs. Consequently, connected miscellaneous petitions are closed.
(P.S.N., J.) (T.K., J.)
gg 01.11.2018
Index : Yes / No
Internet : Yes
To
1. The Secretary to Government,
Tourism, Culture and Religious Endowment Department, Government of Tamil Nadu, Fort St. George, Chennai-9.
2. The Commissioner, Hindu Religious and Charitable Endowments, Nungambakkam High Road, Chennai-34.
3. The Joint Commissioner/ Executive Officer, Arulmighu Dhandayuthapani Swamy Thirukoil, Palani, Dindigul District.
http://www.judis.nic.in 55 PUSHPA SATHYANARAYANA, J.
AND T.KRISHNAVALLI, J.
gg W.A.(MD)No.686 of 2018 etc. batch and connected M.Ps.
01.11.2018 http://www.judis.nic.in